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Obama’s “Short List” pick for SCOTUS might be anti-gay marriage

Timothy Kincaid

April 12th, 2010

ABC News is reporting that President Obama has at least one person on his “short list”:

As speculation swirls about candidates on the president’s list, administration officials have confirmed that at least one of the president’s top picks is a former State Supreme Court justice who would be the first African-American woman to sit on the country’s high court.

Former Georgia Supreme Court Justice Leah Ward Sears, an expert in family law and the first African-American woman to serve as a State Supreme Court chief justice, was on Obama’s short list last year. A member of the left-leaning American Constitution Society, she is also a friend of conservative Justice Clarence Thomas.

While Sears is believed by some to be gay-supportive, her true passion is as an advocate for (heterosexual) marriage. And, as such, she has made statements, built alliances, and contributed to efforts in the past which suggest that she may not completely value equality for our community.

Writing in a Washington Post op-ed in October 2006, Sears made “the case for marriage”. And she identified allies in her quest to have people “get married, stay married”.

I am not alone. For example, “Reconceiving the Family,” a new book published by Cambridge University Press critiquing the ALI’s “principles,” has contributions from 27 family law scholars, including two other state supreme court chief justices. The Institute for American Values recently published a statement, signed by many legal and family scholars, that concluded that “a prime goal of family law should be to identify new ways to support marriage as a social institution so that each year more children are protected by being raised within the marital unions of their parents.” Moreover, the supreme court in my state just established a Commission on Children, Marriage and Family Law with an important goal: to find ways to reduce unnecessary divorce and unmarried childbearing. [emphasis added]

If the Institute for American Values sounds familiar, it is because it is the brainchild of David Blankenhorn, the chief witness on the anti-gay side in Perry v. Schwarzenegger. The book Reconceiving the Family is available at his site, and the following is from the synopsis of the statement that Sears commends:

Unfortunately, the recent trend in family law as a discipline and practice has been just the opposite. Family law as a discipline has increasingly tended to commit two serious errors with regard to marriage: (a) to reduce marriage to a creature of statute, a set of legal benefits created by the law, and (b) to imagine marriage as just one of many equally valid lifestyles. This model of marriage is based on demonstrably false and therefore destructive premises. Adopting it in family law as a practice or as an academic discipline will likely make it harder for civil society in the United States to strengthen marriage as a social institution.

As scholars and as citizens, we recognize a shared moral commitment to the basic human dignity of all our fellow citizens, black or white, straight or gay, married or unmarried, religious and non-religious, as well as a moral duty to care about the well-being of children in all family forms. But sympathy and fairness cannot blind us to the importance of the basic sexual facts that give rise to marriage in virtually every known society: The vast majority of human children are created through acts of passion between men and women. Connecting children to their mother and father requires a social and legal institution called “marriage” with sufficient power, weight, and social support to influence the erotic behavior of young men and women.

We do not all agree on individual issues, from the best way to reform unilateral divorce to whether and how the law should be altered to benefit same-sex couples. We do agree that the conceptual models of marriage used by many advocates are inadequate and thus contribute to the erosion of a marriage culture in the United States. We seek to work together across the divisive issue of gay marriage to affirm the basic importance of marriage to our children and to our society. We call on all the makers of family law—legislators, judges, the family law bar, and legal scholars who create the climate in which other players operate—to develop a deeper understanding of and commitment to marriage as a social institution.

A prime goal of marriage and family law should be to identify new ways to support marriage as a social institution, so that each year more children are protected by the loving marital unions of their mother and father.[Emphasis added]

It is immediately obvious that whatever values are being discussed and whatever disagreement there may be over “whether and how the law should be altered to benefit same-sex couples”, there was absolute agreement that same-sex marriages are “destructive” and “contribute to the erosion of a marriage culture.” In fact, by the time that Sears commended Blankenhorn, he had become best known for his opposition to marriage equality.

Sears has also teamed up with Blankenhorn to sponsor his marriage debates with Jonathan Rouch, and to further the visibility of her own campaign to support heterosexual marriage. (Law.com)

Chief Justice Leah Ward Sears said that the 48-foot-wide, 14-foot-tall billboards are one of the few things a jurist can do to battle high crime rates, high divorce rates and low numbers of fathers raising their kids.

Along with the “Get Married, Stay Married” slogan, each sign shows a happy-looking mother, father and child and one of two messages: “Children do better with parents together” or “For Children’s Sake.”

“We paid $50,000 to get about $500,000 worth of billboard space to send this vital message,” Sears said, noting that the costs of the billboards themselves were paid by the Georgia Bar Foundation and “not state money.” The billboard space was donated by the Outdoor Advertising Association of Georgia, which donates unused billboard space to charitable, civic and governmental organizations.

Sears’ comments came in an interview last week at a more substantive part of her crusade — a two-day conference on marriage for about 250 lawyers, social workers, clergy people and therapists. The event was sponsored by the high court’s commission and the New York-based Institute for American Values, which calls itself a “private, nonprofit, nonpartisan organization that contributes intellectually to strengthening families and civil society in the U.S. and the world.”

While Sears appears to value Blankenhorn and his premises, she has been coy on her own position on the issue. Opponents of Sears claimed that she supported gay marriage in an effort to discredit her elections, but this is not immediately evident from her writing.

Writing in the New York University Law Review in 2007, she said

Finally, before I go any further, I would like to comment briefly on the scope of this Lecture, particularly as it relates to the subject of same-sex marriage. This topic remains a deeply polarizing one for large numbers of Americans, regardless of their sexual orientation. If I were to stake out a legal position on this subject, my comments would hopelessly overshadow anything else I might say about marriage and family fragmentation. More importantly, it would be inappropriate for me, as a sitting judge, to do so. Therefore, this Lecture addresses the more basic question of whether the law should support marriage as an institution at all. The national debate over same-sex marriage raises a host of important issues, and those issues must ultimately be resolved. But as we struggle to work out a consensus, we must not put off the job of reflecting on marriage as we now have it.

Yet one cannot read any of her perspectives on marriage without immediately recognizing that Sears believes that 1) marriage is about children, 2) parents are defined as the natural biological father and the natural biological mother, 3) biological mother/father/child families deserve preference, and 4) other socially recognized structures are destructive to the special status that heterosexual marriage deserves.

We do not, of course, know the extent to which her personal views will color her decisions. But we do know that in 2006, her positions on the constitutional ban on same-sex marriage in the State of Georgia left her on both sides of the issue.

She (and one other justice) opined that the one-sentence amendment was too vague to be put on the ballot because it did not adequately warn voters that civil unions were also being banned. Yet, after the election when a judge struck down the amendment, she voted with the rest of the Georgia Supreme Court to reinstate the ban.

More may come up on Judge Sears which will alleviate my concerns. But until it does, I am troubled by her perspectives on marriage, family, and children and fear that she may prove on the Highest Court to be a life-long opponent to marriage equality.

(hat tip to reader Matt, who brought this to our attention)

Comments

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Ben in Oakland
April 12th, 2010 | LINK

Maybe someone needs to inform her that the children of gay people are every bit as uimportant as the children of heteros.

penguinsaur
April 12th, 2010 | LINK

CITE A SINGLE LAW EVER PASSED BY ANY LEGISLATURE IN AMERICA REQUIRING MARRIED COUPLES TO HAVE CHILDREN.

ONE. Just one ****ing law in all of American history. We pass laws making it illegal to have a live moose in your car, surely at some point a legislature got around to making it illegal for childless couples to marry.

I mean, it’s not like their has never been a single law demanding married couples raise children and that the idea that marriages are only valid if they have children only gained significant support after gays, a group that can’t have kids, tried to get married and the people opposing their marriages have never ever done anything substantial to stop sterile straight people from marrying.

Elliot
April 12th, 2010 | LINK

“Obama’s “Short List” pick for SCOTUS might be anti-gay marriage”

FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF—

Burr
April 12th, 2010 | LINK

A prime goal of marriage and family law should be to identify new ways to support marriage as a social institution, so that each year more children are protected

And what better NEW way to support and protect MORE children than.. *gasp* same-sex marriage?

Seems pretty god damn obvious to me.

Ray
April 12th, 2010 | LINK

Sears is caught in the same dilemma David Blankenhorn was in the Prop 8 trial – she seems to be *emphasizing* but ONE of the important reasons why people marry to the exclusion of all other reasons.

I would hope her reading of the Prop 8 testimony would correct that folly. Marriage is important fro ADULTS as well as for children.

Any one of the following dimensions of marriage is as valued and historically important as the child-centered argument. All people do not employ ALL the dimensions as their reason for marrying. Why must everyone be at the tyranny of #6?

1. Marriage is a legal contract.
2. Marriage is a financial partnership.
3. Marriage is a sacred promise.
4. Marriage is a sexual union.
5. Marriage is a personal bond.
6. Marriage is a family-making bond.

David
April 12th, 2010 | LINK

Once again we see that those GLBTQ people who pressed so hard for Barrack over Hillary

were short-sighted at best in whom they supported.

Obama is not, and never has been, our friend.

TampaZeke
April 12th, 2010 | LINK

I’m sorry David, but I missed the report on Hillary’s change of heart on same-sex marriage and her public declaration of her new position. Could you please provide a link to a report on Hillary’s new position in support of marriage equality?

Last I heard, even before the election, Hillary’s position was the exact same as Obama’s. I’m ecstatic to hear that she has changed her mind but I would like to hear it from her lips rather than your second hand account.

Cole
April 12th, 2010 | LINK

She supports heterosexual-only marriage. That’s it. Don’t fool yourself into thinking she will change or that the opinion she wrote wasn’t personal. She hides behind children as the reason she supports heterosexual-only marriage yet she divorced the husband of her children and married another man. Obviously she has no conflict with those actions and her beliefs because in reality what she wants in heterosexual-only marriage i.e. man + woman, that’s all. The same goes for Maggie Gallagher of the National Organization for (Heterosexual-only) Marriage who never married the man of her child and then later married another man. The reason she is in this debate is to keep marriage heterosexual-only.

Tony
April 12th, 2010 | LINK

@TampaZeke
Hillary Clinton may be opposed to gay marriage personally, but at the same time, she knows that it’s an immutable trait. That’s what we’re really looking for here. Someone who understands the nature of gay people, and who will uphold the Constitution as protecting everyone. So she may not like it, but I honestly can’t see her ruling against gay marriage. She’s way too smart for that.

Fred in the UK
April 12th, 2010 | LINK

From those quotes I would agree that Sears does not support same-sex marriage, in the sense that she does not appear to regard it (or childless heterosexual marriage) as a moral good in its own right. Clearly, she believes that children being born outside of heterosexual wedlock is a bad thing, and by corollary anything that promotes that is to be avoided if possible. However that only makes same-sex marriage wrong if it encourages heterosexuals to have children outside of marriage or actually discourages gay and lesbian couples from having children themselves, is there any evidence that she thinks either of those to be the case? Also I don’t see anything in the quotes to offer a guide as to how, as a jurist, she would balance what she may regard the ‘moral bads’ of same-sex marriage with the principle of equality. How bad would same-sex marriage need to be to be that she couldn’t accept it as a necessary corollary of the principle of equality? (If I have missed anything in the quotes then please point it out.)

That she upheld the constitutional amendment on same-sex marriage in Georgia is to me, at first sight, troubling. However suppose that, as a Justice of the Supreme Court of the State of Georgia, she thought that the constitutional amendment was valid according to Georgian laws, but fell foul of the U.S. Federal Constitution. In the absence of clear precedent from the Supreme Court of the United States, should she have voted to invalidate the amendment or should she have left questions of the Federal Constitution to the Supreme Court of the United States? If the latter is the case then I don’t see what, about her views on same-sex marriage, can be read from her ruling.

Fred in the UK
April 12th, 2010 | LINK

Apologies, the seventh line of my post contains an error, it should have been encourages rather than discourages.

or actually discourages encourages gay and lesbian couples from having children themselves,

SCOTUS Nominee List Updates | Second Reagan Revolution
April 13th, 2010 | LINK

[…] be a lot of analysis of his record. Another new name on this list, Leah Ward Sears, is raising concern because of her strong support for “traditional” marriage, including a 2006 op-ed in […]

customartist
April 13th, 2010 | LINK

Re:

“A prime goal of marriage and family law should be to identify new ways to support marriage as a social institution, so that each year more children are protected by the loving marital unions of their mother and father.”

Here is quite enough for me to be concerned.

It seems that Sears, with this view, confuses the role of the Judicial Branch, with that of the Legislative Branch.

Justices do not Direct Law, they follow and Adhere To the Law.

It is not for the Judicial side to be “identify(ing)” or “support(ing)” any direction or agenda, but it is the duty of this branch to Adjudicate; to make judgements based upon Current Law which includes the Constitution of the United States, and specifically Equal Protection, as it relates to this topic.

While there may very well be many dynamics to implementing Marriage Equality, the fact remains that this is about Civil Rights for Gays, period.

She has overstepped her bounds, shown her true colors, and there is no good reason to believe that she will do anything other than the same if given a Lifelong Appointment.

Obama, if he nominates her, would then truly be talking out of two different sides of his face, IMHGO.

7 Supreme Court Nominees — Who Are They? « SpeakEasy
April 13th, 2010 | LINK

[…] be a lot of analysis of his record. Another new name on this list, Leah Ward Sears, is raising concern because of her strong support for “traditional” marriage, including a 2006 op-ed in […]

Donnchadh
April 13th, 2010 | LINK

It seems to me she agrees with you on most points about marriage: it should be strengthened, it is important for society, it is more than a civil contract, it is better for raising children. The only difference is about coverage of a few percent of couples. Surely that is a minor disagreement. Much worse would be someone who thinks marriage is no different from civil unions, or one who thinks the state should not recognise marriage at all.

Frijondi
April 13th, 2010 | LINK

Is it just me, or is there something disturbingly prurient about Sears’s remarks? This woman sees the law as a means to “influence the erotic behavior of young men and women” — yikes.

I wonder how many heterosexuals out there are comfortable with the idea of a Supreme Court justice who wants to “influence their erotic behavior.” (Of course, if she’s friends with Clarence Thomas, it’s a pity she wasn’t able to influence his, before he began his career as a sexual harasser.)

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